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tv   The Last Word With Lawrence O Donnell  MSNBC  July 9, 2018 10:00pm-11:00pm PDT

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confirmed. he was seen as somebody who might have been used to persuade justice kennedy to retire. judge cavanaugh's name was only added to the list late last year and there has been some speculation he was added to that list as a way to assure justice kennedy that his seat might go to his former clerk and somebody he approved of. we don't know what's going to happen in terms of the nomination fight from here on out. we have heard a number of different grounds that democrats might try to object or delay this hearing, the hearings that are ahead for judge cavanaugh. at least now we have a name. that does it for us tonight. now it's time for the last word. >> i just want to run something by you from judge cavanaugh's 2009 law review article because
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he seems to be saying that he believes presidents can be indicted, not just indicted, can be put on trial while they are in office, and that's why he's so strongly recommending to congress that they pass a bill that prevents that. he says the indictment and trial of a sitting president, moreover, would cripple the federal government, rend dering it unable to function with credibility in either the international or domestic arenas. he does not say the indictment and trial of a sitting president is prohibited by the constitution. he says here's what would happen if you did that. >> right. and that highlights brett cavanaugh's role as a political actor, as the lead author of the ken starr report. he was a lawyer who was involved on the bush side in the bush v. gore recount issue. he was involved in all sorts of partisan republican fights over the years.
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and, therefore, grappling with these issues of presidential accountability. the issue is when you are getting named to the supreme court and there is no supreme court precedent on these matters, this supreme court will essentially be called upon, if these things come to them, to create supreme court precedent on these matters. he won't be bound by anything the supreme court has done before because the supreme court has never grappled with whether a president could be indicted. he's on the record saying that would be a terrible thing that would happen. but, again, this all has to be fought over by people who are now going to start going over the millions of pages of documents that make up his public record. >> rachel, if i could talk to one harvard law school professor tonight about this nominee, it would be professor elizabeth warren, who actually has a vote on the nominee.
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and, okay, she's a former professor, but she is going to join us later to give her reaction both as a former harvard law school professor and a voting senator on this nomination. >> as someone neither a lawyer and tries not to play one on tv, i'm glad to hear that. >> tonight, as predicted and as announced by nbc news, president trump nominated for the united states supreme court a federal appeals court judge, judge brett cavanaugh, who has written in detail that he believes that presidents of the united states should not be subject to criminal prosecutions and investigations. judge cavanaugh was a staff lawyer in the office of kenneth starr whose investigation of bill clinton led to the acquittal of president clinton. he suggested it is currently possible for a sitting president to be indicted and that congress should take action to prevent
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presidents from being subjected to civil lawsuits or criminal prosecutions during their time as president. judge cavanaugh said that after working in george w. bush's white house, he changed his mind about the legal liabilities that a president should face. he suggested it is currently possible for a sitting president to be indicted and that congress should take action to prevent presidents from being subjected to civil lawsuits or criminal prosecutions during their time as president. judge cavanaugh said that after working in george w. bush's white house, he changed his mind about the legal liabilities that a president should face. the minnesota law review he wrote, it would be appropriate for congress to enact a statute providing that any personal civil suits against presidents like certain members of the military, be deferred while the president is in office. congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the president. in particular, congress might consider a law exempting a president while in office from criminal prosecution and investigation, including from questioning my prosecutors or
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defense counsel. here is the passage that indicates that judge cavanaugh currently believes that a sitting president can be indicted and can be put on trial while president. judge cavanaugh wrote, quote, the indictment and trial of a sitting president, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. it would ill serve the public interest, especially in times of financial or national security crisis. judge cavanaugh did not write that the indictment and trial of a sitting president is prohibited by the constitution. judge cavanaugh's article seems to presume, as a constitutional matter, that the president can be indicted and can be put on trial in a criminal court unless
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congress specifically passes a bill that prevents that. joining our discussion now is the former president of planned parenthood and the author of make trouble standing up, speaking out and finding the courage to lead. also joining us a former senior agent to president obama and the president of the center for american progress. and you have been at the supreme court tonight where there has been a public protest reaction there to this nominee. what is happening there now? >> lawrence, i have been here since really the announcement. and we have a growing crowd. i think it is now over 1,000 people who are deeply concerned about brett kavanaugh and what he will do for americans rights. the nomination really is a
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threat to all of our rights. >> everyone has been concerned for what any trump nominee would mean to rowe v. wade and nbc news is reporting that last call judge kavanaugh criticized his colleagues on the court for creating a new right for unlawful immigrant minors in u.s. government detention to obtain abortion on demand. >> i mean, it was incredible case and she was of course just trying to exercise her legal
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right and, in fact, if he had been successful, he would have pushed her actually into her second trimester. i think that this nomination is causing concern, obviously, for women all across this country. it has been the law of the land for more than 40 years, but we know it's been hanging with a one vote difference of the court. i think women who are already wildly concerned about this president and everything he's done are going to be deeply concerned about this nomination. i think what you are seeing is just one indication. >> i want to get your reaction to this passage in his 2009 writing where he says -- he talks about what the indictment and trial of a sitting president would mean. so this means that judge kavanaugh would be -- if he finds himself in a position where he can rule as a supreme court justice that it is unconstitutional to indict a
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sitting president, he would be in conflict with judge kavanaugh. >> he would, but this article which largely says that congress should find a way to exempt the president from even being questioned clearly was eye candy for donald trump and said he would be simpatico with his position. i agree. if he flips all the way over and says trump in fact legally is protected, that would be a change in position. but i think that's why question number one should be, what were you asked about this article? what did you say? what assurances did you offer? what kinds of things did the white house want to know? he is the only potential nominee on trump's list who explicitly wrote the president should have protection from investigations. that definitely had to raise questions in the process. >> but that means he's also the only one who specifically wrote that only congress can provide those protections. the supreme court cannot. >> look, i think clearly what this means for donald trump is one question. what it means for the other three hundred million of us is another question. he dissented from the case that
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upheld the affordable care act of the right of employees to get birth control. he would give women's rights over to their employers. he is a very, very conservative judge. that's why he was picked. that is the issue front and center as well. >> when he was confirmed, he got four democratic votes. only one of those senators is still in the senate. that's senator carper. you are hearing from senators there tonight. does it sound like there will be any democratic support for this nominee? >> from the democratic senators who are here tonight, all we're hearing is about a protection of american's rights. we should be clear about this, that this is a nominee who threatens rowe, a nominee who threatens the health care of millions of people and a nominee who has spoken about the protections a presidents should have from investigation. it's unclear where he would land up on that, but he has spoken more clearly about the need for a president not to be indicted
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than any other nominee. and i think americans should be suspicious. the senators here tonight are willing to stand up and fight for the issues we all care about, but we have to remember that there are a number of republicans who have claimed to be pro-choice nominees. brett kavanaugh has gone out of his way to argue the dissent side in rowe. so i think he has to state whether it should be the law of the land. only then can we really determine his actual views. >> sue richards, one of the senators that can stop this nam -- nomination released a written statement and she says i intend to carefully consider the american bar association's rating on this nominee, the information obtained through
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personal meetings, my own review of judge kavanaugh's qualification and the view of alas cans in determining whether or not to support him. is the best strategy for opponents of our nation to literally go to alaska and try to stimulate their opposition? >> i think there will be. he will be hearing from a lot of people in alaska, a lot of women. i am glad they didn't go to the white house tonight. >> they were invited. >> they were invited. >> it was an audience of senators, among others. >> and i think it is really important that, of course, confirming the next supreme court justice has implications not only for the women of alaska but for the woman all across this country. it is not only what his position is on rowe. he has taken an active position in believing that bosses should
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be able to determine whether or not their employees have birth control. we know there is a big aca case which is basically protecting the rights of women not only to get family planning, protecting folks with pre-existing conditions, protecting women to not have to pay for more health insurance than men. every single access to health care and economic issues for women are on the line here and i certainly hope they force him to say what is his position on rowe v. wade and women's equal access to health care. >> no one has been through the confirmation more than you have and the senate judiciary committee in the clinton administration, in the obama nomination. you have coached nominees successfully. strategically, what can be done for the democrats to stop this nomination? >> well, first they have to make sure the judiciary committee does it job.
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that starts with a thorough review of his records, including his years in the white house. when brett was nominated for the appellate court and approved, they did not look at the literally hundreds of memos he wrote as a senior aid to president bush. i think it is very important for the committee, for this life appointment to make these important decisions for them to see the full record here. what kind of memos did you write to president bush? what positions did you take on legal issues? what do the folks who made this pick know that we don't know. the federal society put him on this list, appointed him. they know who he did as a bush aid. we don't. the public and judiciary committee should have the same right to that information. >> the opponents of this nomination who have gathered at the supreme court tonight, is their focus on republican senators tonight, like suzanne collins or lisa merkuwski? >> i think they're focussed on a
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majority in the senate, which means we need democrats to oppose this nomination. but we can't do this with democrats alone. they could be in office when a brett kavanaugh decides with the majority to overturn rowe or to gut the affordable care act. this is a decision they make with millions of americans on their shoulder. the people on these streets here, the people on this rally are focussed on making their voices heard. it is really important for all of us to call our senators. this is advise an consent in the senate to call our senators and let them know this nomination is not something that we agree with as americans, that our rights should not be up to donald trump and trump court. >> if judge kavanaugh is
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confirmed and if he votes to overturn rowe v. wade, it would be over turned by five men without a woman's vote. >> this is a very real, real possibility. this isn't -- we are not playing around. one of the things to look at is not only who we're seeing in opposition to this nomination, but i notice before i came on tonight, lawrence, that every major national anti-choice organization is popping the champagne tonight saying this is a huge victory. finally to get an anti-choice majority on the supreme court. so i think it is going to be incredibly important in these hearings to push this judge about where he stands on a case that was decided 45 years ago. >> ron, where do you expect most
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of the emphasis to be in the confirmation hearing? there is obviously two big areas, one is rowe v. wade. the other is the possible avenues of challenge of the president of the united states, both through special prosecutors. >> i think that's right. i'd add two more. one is the affordable care act and what judge kavanaugh said about that. you are going to have senator warren on soon. judge said it was environmental. it is a fourth element of his confirmation i expect democrats to have very hard questions about. >> i am taking notes on my questions for senator warren who will be joining us in a minute.
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thank you for starting off our discussion tonight. coming up, senator elizabeth warren will join us. we will get her reaction to this nominee coming up. how will brett kavanaugh rule in a trump versus mueller case? to your bumper, cause.... i don't think enough people heard about your big day. but nothing says "we got married" like a 12 ounce piece of scrap metal. yo! we got married! honk if you like joint assets. now you're so busy soaking up all this attention, you don't see the car in front of you. and if i can crash your "perfect day", imagine what i can do to the rest of 'em. so get allstate, and be better protected from mayhem. like me.
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this wi-fi is fast. i know! i know! i know! i know! when did brian move back in? brian's back? he doesn't get my room. he's only going to be here for like a week. like a month, tops. oh boy. wi-fi fast enough for the whole family is simple, easy, awesome. in many cultures, young men would stay with their families until their 40's. that is a shot of the protest that has occurred on the
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steps of the united states supreme court tonight after the president has announced that his nominee for the united states supreme court is federal circuit court of appeals judge brett kavanaugh. joining us now, senator elizabeth warren, democrat from massachusetts. senator warren, thank you for joining us tonight. i'm sure you heard in brett kavanaugh's acceptance of this nomination from the president tonight he mentioned his time teaching at harvard law school. you have also been on the faculty of harvard law school. i am wondering if you over lapped with judge kavanaugh. >> i don't know him from personally from harvard. what i knew him from are his opinions that he's written and i know him from the fact that he appears on the list that the federalist society put together of people who will overturn roe v. wade. that's how we know brett kavanaugh.
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that's the principal way. >> i want to go to something right away. that is judge kavanaugh's view of the consumer financial protection bureau. what do you think it would mean to the future? >> he already said he thinks it is unconstitutional because it has a single director rather than multiple directors, which it's not the only agency that has a single director. in fact, the environmental protection agency is another one that has a single director and we have the officer of the controller of the currency. here's what troubles me about it, though. i look at it this way. donald trump had a list of people that had been pre-screened by the federalist society. and, so, he knew that everyone on that list was committed to overturn roe v. wade because that's the standard he used. he knows that everyone on that
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list is committed to overturning health care rights for tens of millions of americans. so the question then becomes, how do you pick under those circumstances? and donald trump picks the nominee, picks the person who says, you know, it would be a total disaster for the united states of america if it turned out that the president of the united states got indicted. now, the reason this is so important is, look at what he did with the consumer agency. look at what he did with the environmental protection agency. he didn't limit himself to say, hey, listen, let's stick with a strict reading of the constitution. i will defer to let congress decides what it wants to do, carry out the rules. instead, he thought it was better to substitute his own judgment. he wants to put his own judgment forward for these agencies, how he thinks things would work better. he is a political animal. he has been for a big part of the formative years of his career.
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and, so, he thinks of this, i think, as, wow, we need to make sure that the united states of america stays safe by protecting the president from, what, from investigation, from indictment, from prosecution. that's what troubles me about the whole picture here. donald trump has got the trifecta. he's got someone who will be committed to overturn roe v. wade, someone who will be committed to rolling back health care for millions of americans and someone who, it looks pretty likely, will help donald trump if he gets in to serious criminal trouble. >> senator, does it give you any comfort that in judge kavanaugh's writing in 2009 when he was saying that indicting and
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prosecuting a president would be bad for the country that he kept saying repeatedly throughout the article that only you in congress can prevent that, that only congress can pass a bill to basically defer any prosecutions of the president until after the president leaves office. >> you know, the part that worries me most is he keeps talking about what a disaster it would be for the country. and ultimately, the supreme court is going to have to make law in areas where we don't have precedent. and in other opinions, judge kavanaugh has already made clear he is willing to put his own judgment in and to put his judgment on the line. and if he thinks that it would be a disaster for donald trump to be indicted, he looks like somebody who could very much be on trump's side. what's so worrisome about all of this is he very well could be the deciding vote in whether or not a criminal prosecution against the president goes forward.
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look, i get it. we're looking ahead. but this is a president right now who hears the hoof beats of an investigation that is bearing down on him. the mueller investigation has been going forward. it has already produced multiple indictments, multiple guilty pleas and all of the threats keep tieing back to donald trump himself. and that's a real problem. and donald trump is nothing if not a man who protects first and foremost donald trump. >> would you suggest to democrats or opponents of the nomination that the place to go to work is in maine and alaska to try to get the votes of your republican colleagues there, the only two republican senators who are pro-choice? >> look, the way i see this is nobody makes it to the supreme
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court without a majority in the united states senate. and i think people all across this country need to raise their voices. always keep in mind on this, we didn't have the votes to protect the affordable care act. we didn't have them. i remember the day after donald trump was sworn in thinking about the fact that now the republicans control the house, control the senate, control the white house. they could roll back obama care next week. and i really feared they would do it. but people across this country raise their voizs and it got bigger and it got louder and bigger and louder and it was democrats. it was republicans. it was independents. people made their voices heard. and ultimately, when they did that, we got enough republicans to cross the aisle and to save health care for tens of millions of americans. you know, that is the remarkable part about a democracy.
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we raise our voices. we can all still be heard in washington. and for me, that's what this is about right now, raising our voices. all of us. we need to speak up like we have never spoken up before. this is the time. >> i'm sure there will be questions in the judiciary committee, especially from democrats, about the rights of children who are being held at the southern border, some of whom you were able to visit when you went down there. judge kavanaugh has already ruled in that arena last fall he wrote a decision siding with the trump lawyers to block a migrant teenager in texas from being released from custody to receive an abortion. he tried to prevent that. he was overruled by his own colleagues on the circuit court of appeals, and then he complained that his colleagues were creating a right to, what he called, abortion on demand for girls in that situation.
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>> yes. yeah. you know, i was just down there two weeks ago yesterday. down on the border. and what i saw was deeply shocking. i talked -- i met directly with women whose children had been taken away from them, women who had been lied to when their children were taken away, women who had absolutely no idea where their children were and women who, with one exception, had had no phone calls, no contact whatsoever with children that had been taken away by the united states government. i even met with the head of the ice facility with these women were being held. look, there is just nothing else to call it. it is a detention facility. it had been re-named by the trump administration a family reunification center. and the person in charge said, hey, we don't have anything here to care for children, to deal with children. we have no children here, no capacity to take them in. and no plans to reunify these
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mothers with their children. and we have been pushing now for two solid weeks. the trump administration cannot come up with a plan to put children and their parents back together. in fact, what we keep finding out is there are even more children who have been separated from their parents than we initially understood. and someone like judge kavanaugh, who is so worried that we may somehow create rights in the people whose lives are being torn apart by the united states government, this is someone who is leaning in exactly the wrong direction. and there is a perfect example, lawrence, of an area. the supreme court may end up having to make new law in this area.
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when that's the case, i want to know something about this judge. i want to know something about this judge's values. and what he's revealed so far is not something that reflects america's values. he seems not to have any concern for what it means to be a 16-year-old stranded in this country. what it means to be a woman who comes here who is fleeing violence and asking for asylum, what it means to be a refugee. that is not something, evidently, that judge kavanaugh cares about. i think that's going to be a real problem for him during this nomination hearing. >> there are two federal courts in california that could end up in the supreme court, the flores case the judge ruled today against the trump administration's attempt to be able to hold children for more than 20 days, which in the
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flores case has always forbade. and the judge in that case called the trump administration's reasoning tortured. the judge in san diego federal court has discovered -- and only because of this litigation, has discovered that the trump administration claims to have 102 children under the age of five and that judge gave them a two-week order to get those children reunited, and they have managed in two weeks to reunite exactly two of them. >> that's right. in fact, think about what the trump administration's defense in court was. it effectively was the trump administration is so incompetent and failed to keep good enough records when families were torn apart that they can't figure out how to bring them back together. that's what they went into court in effect to argue. the trump administration has to be held accountable for what they have done to human beings on the border in the name of the united states of america.
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>> senator, your experience dealing with senator collins and snavrt merkowski, what do you think are the most effective lines of persuasion on this issue? >> look, they will make their own decisions, but both of them have been quite public about their pro-choice views. they understand a woman's constitutional right to make a decision about her own body. they have been very strong in saying they did not want to criminalize abortion and did not want to punish women. but they also care deeply about health care. remember, they voted to help preserve health care coverage for tens of millions of americans and we know health care is going to be on the line with this supreme court pick. and judge kavanaugh has already
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made clear that he's not a supporter of the health care bill and the rights of americans to retain their health care protection. so i think those are two issues that are going to be powerfully important to senator collins, to senator merkowski, but i think they should be important to every senator. i think every single senator has a responsibility as they prepare to vote on this nomination to look at the question of what it will mean for a woman's constitutional right to choose. what it will mean for health care for tens of millions of americans, what it will mean for having a justice that has already indicated that he's concerned about whether or not a sitting president has indictments outstanding against him, whether or not we're going to be able to protect environmental laws. the list is a long list, but
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right there at the top of it is going to be a real decider for a whole lot of people in the united states senate. >> senator elizabeth warren, thank you very much for joining us on this important night. we really appreciate it. >> thank you. >> coming up, this supreme court nominee will be asked how he will rule in the case of trump versus mueller, which is very, very likely to come to the supreme court.
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the most important question in the president's mind tonight about his new nominee for the supreme court, brett kavanaugh, is if confirmed how will the new justice rule on the case of trump versus mueller, the case in which president trump appeals a court order to comply with a subpoena from robert mueller to testify under oath to a grand jury. the president's lawyers have no doubt told him that the supreme court ruled unanimously that president richard nixon had to comply with the special prosecutors subpoena for audiotapes. but on tv, rudy giuliani pretends that never happened. >> i am not. i have no idea what he's going to do. i think if he does, we could
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have the subpoena quashed. to subpoena the president, never been done successfully in the history of this country. >> in fact, there is no law saying the president cannot be subjected to criminal process, as president nixon painfully discovered before he decided to resign the presidency and accept a pardon from his former vice president after he resigned. that's how president nixon avoided criminal process, by resigning the presidency and getting a pardon that prevented any criminal process from closing in on richard nixon. rudy giuliani said the president would submit if the special prosecutor's team revealed all the evidence they have against the president. that is the same thing as saying the president will never submit to an interview because no prosecutor would ever reveal to a witness before the interview everything they know about the
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witness. rudy giuliani continues to double talk the issue of the president agreeing to an interview or testifying by attaching possible conditions to the president testifying and then saying that the president really wants to testify. >> george, he wants to testify. he believes -- >> that's hard to believe that any more, mr. mayor. >> it has always been hard to believe that. rudy giuliani said something more important this weekend that got very little notice because he didn't say it on tv, and it reveals exactly why president trump and rudy giuliani constantly attack the special prosecutor with the lies that the investigation is a witch hunt and that the investigation is the most corrupt investigation that he's ever seen. we will bring you that after this break. and, hint, it's all about impeachment.
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it's almost like i am watching a bad movie that now a president of the united states has got sort of indemnified himself by picking the one person he knew would have his back, the one person that would give him shield that anything that might come at him, even though we see numerous people around him are under
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investigation right now. >> the one thing a supreme court justice cannot protect a president from is an impeachment proceeding. this weekend in an interview with the new york times, rudy giuliani said nobody is going to consider impeachment if public opinion has concluded this is an unfair investigation and that's why public opinion is so important, and that is why rudy giuliani says things like this. >> this is the most corrupt investigation i have ever seen. >> joining us now analyst and columnist for "the daily beast." and there is much concern tonight ant brett kavanaugh's stated preference that presidents never be criminally investigated, criminally prosecuted, criminally indicted while they are sitting presidents. but rudy giuliani seems to be worried much more about the possibility of impeachment than about anything happening in a courtroom. >> he's trying to poison the
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jury pool. so he did this weekend what he called the full ginsburg. that was monica lewinsky's attorney. he used to go on all the sunday shows to deliver a message. so his message, which is to slime robert mueller, who is probably the person with the most integrity of anybody in our country right now, making up lies about mueller and trying to poison people's opinions of him. i don't think it is going to work. i don't think giuliani is a particularly effective messenger and it doesn't do anything to dissuade mueller from doing his investigation. >> let's listen to what judge kavanaugh said tonight is his judicial philosophy. >> my judicial philosophy is straightforward. a judge must be independent and must interpret the law, not make the law. a judge must interpret statutes
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as written, and a judge must interpret the constitution as written, informed by history and tradition and precedent. >> and, ron, that judicial philosophy will be questioned closely when it comes to that law review article where he said clearly that congress must act to protect the president from being indicted or put on trial while president because he does not believe that judges have the power to block that. >> yeah. i mean, obviously, i think there is going to be a bunch of questions around this. this is a person that spent the '90s trying to prosecute president clinton. >> yes. he was on kenneth starr's staff. >> supposedly the author of the infamous starr report. he spent five years trying to prosecute a president and trying to get a president impeached. after that was over, wrote an article saying, hey, i changed my mind. turns out presidents should be exempt. >> there is a big record. >> what is so fascinating about this 2009 law review article is
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just how juvenile it is. when it comes to describing the presidency. because he says he had no idea. >> yeah. >> that the presidency was a really big job. when he was trying to prosecute the president through the impeachment process and kenneth starr, he didn't realize this president had all these issues like national security. >> it has a big aw shucks quality about it. but since then donald trump has shown us presidency isn't a big job. but i think judge kavanaugh will have to be asked about this and whether or not donald trump truly is too busy to be asked questions. in the end, judge kavanaugh may be willing to shield for donald trump. rudy giuliani continues to say these ridiculous things. it is a smear job that shouldn't work.
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>> jonathan, the senators who the president really wanted to see in his audience tonight at the white house were not there. they invited senators, invited all republican senators. suzanne collins, lisa murkowski did issued statements saying sorry, can't be there. they didn't say why they weren't there. but is that a sign of hope for people trying to block this? >> i think they're taking a wait and see attitude. they want to see whether something comes out. there are things that we don't know about brett kavanaugh. we don't know what he did in the bush administration when he had a lot of contact with president bush, what he recommended. way don't know what he did when on ken starr's staff. you know, i covered some of that
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at the time 20 years ago. and what i heard at the time don't have proof of this. is that brett kavanaugh was leaking. now unlike bob mueller, ken starr's staff routinely leaked details of that investigation. that's in violation of rule 6-e of the rules of federal and criminal procedure. so i think live on our screen having gone from our discussion here at the last word over to get another last word there at the protest location. and, you know, jonathan, we don't know that the democrats will get any of that material. and the republicans can go ahead with a vote without any of that material being distributed. >> a reporter that dealt with brett kavanaugh 20 years ago came forward and said, yeah, he did leak to me. we just saw that happen with a reporter with the intercept. if that happens, he would need to ask questions about why he was violating the law and
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leaking to a reporter. >> ron, procedurally, people think i think that there is a lot of trip wires that democrats can use both in the committee and on the senate floor. i haven't been able to find any of those. i mean, i think what people are mistaking is there is an area that is tradition. and there is an area that is rules and there is much more tradition than there are rules on this. and if mitch mcconnell decides he doesn't care about getting any more paperwork from this nominee, he doesn't have to get it. he can just bring this nominee right to the floor. >> look, the power of the minority is the power to raise the price on the majority for acting. to throw some hurdles and roadblocks in the way to delay things. mitch mcconnell will pay any price to get him confirmed. there will be no more legislation in the senate. mitch mcconnell will trade all of that for this nomination. i think that is the fundamental limitation. to beat brett kavanaugh, the democrats have to beat brett kavanaugh with votes. with 51 no votes. that's really what it comes down to. and that means republican votes.
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>> yeah. it's not likely. we always make the statement this is a new session. >> democrats have to go with possible right now and fight as hard as they can. if there is a situation where they vote for him and joe donnelly of indiana and if they go ahead and also vote for him, i hope democrats aren't too hard on those guys, you know, if the votes are not needed. if the cause is lost and then they do something to defend themselves politically to get re-elected. sometimes democrats can be a little bit unforgiving in those situations and they should think about it in a more sophisticated way. >> yeah. i think the politics this time are different though. it reminds me of the bork nomination 30 years ago. the balance of the supreme court
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turned. the southern democrats have to go along. everyone has to listen to ronald reagan. in the end, the politics completely reversed and the good political vote was to vote against bork. because the case had been made against him. the country rose up. he was beaten by democrats and republicans voting against him. i think the same thing can happen. it's the balance of the supreme court. it's roe, it's obamacare. >> it's about alaska and maine. people in those two states and people who know people in those two states have to figure out what are the pressure points. >> in the statement tonight, she's going to consider what the people of alaska want. and so it's a question of what does she hear? what does susan collins here in maine. when you were on the staff of the judiciary committee, did you see senators responding to what is happening back in their states in these matters? >> there is no question about it. and one time i was chief counsel judiciary committee during the clarence thomas hearings.
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we saw the country explode about the revelation of judge thomas and professor hill and demand the confirmation be slowed down until the testimony go forward. so the public has a voice here. it has input. it can buck up the democratic senators. it can force collins and others to explain what they're doing. there is a role for the public to speak out. it does have impact in this process. >> i was working the senate when the thomas hearings came up. and i watched democratic senators over time change their minds. and it wasn't so much what was happening in the hearing room. it was what they were hearing back in their states in reaction to what was happening in the hearing room. thank you both for joining us tonight. tonight's last word is next. i tend to play the tough guy. but i wasn't tough enough to quit on my own. not until i tried chantix. chantix, along with support, helps you quit smoking. it reduced my urge to smoke to the point that i could stop.
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after you saw senator war and pear live on this program, she went across the street to the steps of the supreme court where she got in her last word on the night on supreme court nominee brett kavanaugh. >> the road ahead will not be easy. but we won't back down. we won't give up. we won't go back. we will fight for the future of our kids. we will fight for the future of this democracy. and we will fight for the sole of this nation!
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>> senator elizabeth warren gets tonight's last word. brian williams has much more on the supreme court nomination including reaction from presidential historians david marinas and john meachum in the 11th hour with brian williams which starts right now. >> tonight the president's choice that could affect the law of the land for decades to come. the nomination of brett kavanaugh, a bush 43 nominee for the supreme court and now comes the fight over confirmation. also tonight, rudy giuliani back on tv, back with yet another new answer on whether trump meets with mueller. and the new reporting tonight on what donald trump said about his own staff during a phone call with putin. all of it as "the 11th hour" gets underway on a monday night. >> good evening once again from our nbc news headquarters here in new york. day 536 of the

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